1. Bullying and Students With Disabilities New Jersey CASE October 2013 Presenter: Art Cernosia

2. Relevant Laws Individuals With Disabilities Education Act (IDEA) Section 504 of the Rehabilitation Act Americans With Disabilities Act (ADA) New Jersey’s Anti-Bullying Bill of Rights Act New Jersey’s Law Against Discrimination

3. Students With a Disability Under the IDEA Meets One or More of the Disability Categories ▫Note: In New Jersey, social maladjustment is also a disability Adversely Affects Educational Performance In Need of Special Education ▫Specially Designed Instruction

4. Social Maladjustment (N.J.A.C. 6A:14-3.5 (c)(11) Social maladjustment" means a consistent inability to conform to the standards for behavior established by the school. Such behavior is seriously disruptive to the education of the student or other students and is not due to emotional disturbance”

5. Individual With a Disability Under Section 504 Has a physical or mental impairment which substantially limits a major life activity Has a record of an impairment; or Is regarded has having an impairment

6. Bullying There is no Federal law or regulation directly addressing the issue of bullying United States Department of Education, Office of Special Education Programs (OSEP) has defined bullying in a recent memoranda relating to bullying of students with disabilities under the IDEA

7. OSEP’s Bullying Definition Characterized by aggression Within a relationship where the aggressor(s) has more real or perceived power than the target The aggression is repeated, or has the potential to be repeated over time. Overt physical behavior or verbal, emotional, or social behaviors Range from blatant aggression to far more subtle and covert behaviors.

8. OSEP’s Bullying Definition Includes cyberbullying or bullying through electronic technology ▫offensive text messages or e-mails ▫rumors or embarrassing photos posted on social networking sites ▫ fake online profiles

9. Harassment Based on Disability U.S. Dept of Ed Definition Disability harassment is “intimidation or abusive behavior toward a student based on disability that creates a hostile environment by interfering with or denying a student's participation in or receipt of benefits, services, or opportunities in the institution's program” United States Dept of Education Memo (2000)

10. Harassment Based on Disability U.S. Dept of Ed Definition Harassing conduct may take many forms: ▫verbal acts and name-calling; ▫nonverbal behavior, such as graphic and written statements; or ▫conduct that is physically threatening, harmful, or humiliating.

11. Disability Harassment Disability harassment may result in a denial of FAPE under: ▫The IDEA ▫ Section 504 ▫Title II of the Americans with Disabilities Act Parents may initiate administrative due process procedures under IDEA, Section 504, or Title II to address a denial of FAPE, including a denial that results from disability harassment.

12. OCR Guidance Some student misconduct that falls under a school's anti-bullying policy also may trigger responsibilities under one or more of the federal antidiscrimination laws. By limiting its response to a specific application of its anti-bullying disciplinary policy, a school may fail to properly consider whether the student misconduct also results in discriminatory harassment. OCR Letter (2010)).

13. OCR Guidance The label used to describe an incident (e.g., bullying, hazing, teasing) does not determine how a school is obligated to respond. Rather, the nature of the conduct itself must be assessed for civil rights implications. The unique effects of discriminatory harassment may demand a different response than would other types of bullying.

14. New Jersey Anti-Bullying Bill of Rights Act Three elements of Harassment, Intimidation or Bullying (HIB): ▫Behavior ▫Location ▫Impact

15. Harassment, Intimidation or Bullying Any gesture, any written, verbal or physical act, or any electronic communication Whether it be a single incident or a series of incidents Reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory disability, or by any other distinguishing characteristic

16. Location of HIB Conduct which takes place: ▫ on school property: ▫at any school-sponsored function; ▫on a school bus; or ▫off school grounds

17. Impact of HIB Substantially disrupts or interferes with the orderly operation of the school or the rights of other students and that: ▫a reasonable person should know, under the circumstances, will have the effect of physically or emotionally harming a student or damaging the student's property, or placing a student in reasonable fear of physical or emotional harm to his person or damage to his property; ▫has the effect of insulting or demeaning any student or group of students; or ▫creates a hostile educational environment for the student by interfering with a student’s education or by severely or pervasively causing physical or emotional harm to the student.

18. IDEA Claims Dispute Resolution Options FAPE Standard Remedies ▫No monetary damages

19. IDEA Dispute Resolution Options Mediation State Administrative Complaints Due Process Hearings (filed within 2 years) Appeal to State or Federal Court

20. FAPE Standard Have the procedures set forth in the IDEA been adequately complied with? Is the IEP reasonably calculated to enable the child to receive educational benefits? Board of Education of the Hendrick Hudson Central School District, et al. v. Rowley, et al. (United States Supreme Court (1982))

21. IDEA Remedies State Administrative Complaint Corrective Action Plans ▫Ordering the IEP Team to reconvene ▫Staff Training/ Policy Revisions ▫Compensatory Education ▫Monetary Reimbursement for Services ▫No Monetary Damages Due Process Hearings/Judicial Appeals ▫IEP Revisions ▫Reimbursement for Unilateral Placements/Services ▫Attorney Fees for prevailing party status ▫No Monetary Damages

22. Section 504 Claims Dispute Resolution Options Discrimination Standard Remedies ▫Monetary damages possible if intentional discrimination/deliberate indifference shown

23. Section 504 Dispute Resolution Local Grievance Procedures Due Process Hearings Complaints filed with the United States Department of Education, Office for Civil Rights (within 180 days) Judicial Actions

24. 504 Discrimination Standard Must demonstrate that he/she: ▫ (1) has a disability; ▫(2) was otherwise qualified to participate in a school program; and ▫ (3) was denied the benefits of the program or was otherwise subject to discrimination because of her disability. Intent not required

25. 504 Remedies Local Grievance/OCR ▫Corrective Actions Judicial Actions ▫Injunctive Relief ▫Monetary Damages for intentional discrimination /deliberate indifference ▫Attorneys Fees

26. Standard for Liability Peer Harassment Deliberately fails to stop pervasive harassment. The conduct must be so severe, pervasive and objectively offensive that the student is precluded from benefiting from a public education before liability is imposed. Davis v. Monroe (United States Supreme Court (1999)).

27. Elements of Liability Standard Under Section 504 The student is a student with a disability; He/she was harassed based on their disability; The harassment was sufficiently severe or pervasive that it altered his/her education or created an abusive/hostile environment; The school knew of the harassment; and The school was deliberately indifferent to the harassment incidents.

28. Deliberate Indifference Two-part standard for deliberate indifference requires a showing that both: ▫ (1) knowledge that a harm to a federally protected right is substantially likely, and ▫(2) a failure to act upon that likelihood. Does not require a showing of personal ill will or animosity toward the disabled person. Must be a “deliberate choice, rather than negligence or bureaucratic inaction”. S.H. v. Lower Merion (3 rd Circuit (2013))

29. Americans With Disabilities Act Dispute Resolution Options Standard under Section 504 applies

30. New Jersey Anti-Bullying Statute Reporting/Investigation/Report Requirements Dispute Resolution Options Remedies

31. HIB Dispute Options Prompt Investigation Report ▫Superintendent ▫Board of Education ▫Parent/Guardians Board Decision Appeal to the Commissioner Appeal to Court

32. HIB Remedies Intervention services Training programs Discipline Counseling Other appropriate actions Anonymous reports shall not be construed to permit formal disciplinary action solely on the basis of an anonymous report. Other available civil or criminal law remedies. The law does not create or alter any tort liability.

33. New Jersey Law Against Discrimination Complaint to the N.J. Division of Civil Rights ▫Office of Administrative Law ▫Director of Civil Rights Office Remedy ▫Equitable Relief ▫Compensatory Damages ▫Attorney’s fees Judicial Action ▫Compensatory or Punitive Damages

34. Bullying/Harassment and the IDEA FAPE standard Whether the behavior is related to the student’s disability is not determinative Denial of FAPE if the bullying results in the student not receiving meaningful educational benefit

35. FAPE and Bullying Under the IDEA When responding to bullying incidents, which may affect the opportunities of a special education student to obtain an appropriate education, a school must take prompt and appropriate action ▫Regardless of whether the student complained ▫Investigate /Take steps to prevent it from happening Not necessary to show that the bullying prevented all opportunity for an appropriate education, but only that it is likely to affect ed opportunity T.K. v. New York City Dept of Ed

36. Harassment Claims by IEP Students Parents filed a lawsuit under the Constitution, Section 504 and the ADA Seeking monetary damages for being taunted, ridiculed and humiliated The Court held that both the genesis and manifestations of the alleged problem are educational Lawsuit dismissed for failure to first request a due process hearing. Charlie F. v. Skokie (1996)

37. Harassment and Unilateral Placements Under the IDEA Student was subjected to both verbal and physical harassment by other students Student became depressed and attempted suicide Parents moved the student to a high school in a neighboring school district Court concluded that the high school of residence could not provide a FAPE due to harassment Shore Regional High School v. P.S. (2004)

38. Harassment and FAPE Under the IDEA Parents alleged that their student was denied a FAPE since he was continually teased and the school was “deliberately indifferent” Court held that the evidence was insufficient to show that FAPE was denied ▫Student removed from school after 5 days ▫No evidence to show loss of ed opportunity M.L. v. Federal Way School District (2005)

39. Harassment/Bullying Under the IDEA Student alleged he was harassed and bullied due to his disability and physical stature without adequate response by school staff No due process hearing requested Court overturned dismissal of FAPE complaint since lower court failed to consider impact on FAPE ▫No requirement to show that a student permanently deprived of a FAPE to state a claim Smith v. Guilford (2007)

40. Bullying and the IDEA Student was bullied and harassed daily ▫Data collected by the school as part of an FBA Staff investigated reports and took action against other students ▫Paraprofessional was assigned Court dismissed lawsuit finding that the school neither condoned nor ignored behavior Student made significant ed progress Emily Z. v. Mt. Lebanon (2007)

41. Bullying and the IDEA School’s program deemed appropriate since evidence showed that the school would address bullying if it occurred. A FAPE does not require that the school be able to prove that a student will not face future bullying, as this is impossible. J.E. v. Boyertown Area School District (2011)

42. Bullying and FAPE Under the IDEA Denial of FAPE violation District's response to the parent's and student's reports was in accordance with its written anti- bullying policy The IEP Team failed to adequately address the student's social and peer relationship ▫The IDEA is broader than focusing on the student's academic success as the only indication of meaningful progress. Tri-Valley School District (2013)

43. Bullying Lawsuit for monetary damages was initiated alleging student was bullied Parents argued that since the IDEA does not specifically address bullying there is no need to first request a due process hearing Court dismissed for failure to exhaust administrative remedies ▫Purpose of the IDEA is to provide a FAPE not a “ forum for tort-like claims of educational malpractice” Wright v. Carroll County (2012)

44. IDEA and Monetary Damages IDEA actions are intended to ensure that disabled students receive FAPE, not a means for an individual to address collateral torts such as bullying While the Third Circuit has not definitively addressed the availability of tort-like compensatory damages in IDEA cases, this Court adopted the reasoning of the majority of Courts of Appeals in finding that tort-like compensatory damages are not available under the IDEA. Butler v. Mountain View School District (2013)

45. Section 504 Harassment OCR OCR standards used for administrative enforcement of Section 504 are different from the liability standards established by the Courts when plaintiffs are filing private lawsuits seeking monetary damages. Not necessary to show actual knowledge, intentional discrimination or deliberate indifference

46. Bullying/Harassment Under Sec.504 No deliberate indifference The school “diligently investigated” each reported incident and, when they could identify the harasser, disciplined offenders Student’s IEP Team included a safety plan as part of his IEP Although the school’s efforts could have been more effective, the school took affirmative steps to address bullying/harassment Long v. Murray County School District (2013)

47. Harassment Under Sec.504 The Court held that the teasing and other inappropriate actions directed at the student did not constitute harassment since the facts did not show the conduct was motivated by the student’s disability or sex Lawsuit for damages under Sec.504, ADA and Title IX was dismissed Hoffman v. Saginaw Public Schools (2012)

48. Harassment Under Sec.504 Court dismissed a lawsuit for damages based on alleged harassment Evidence weak that the student was harassed based on his disability No evidence to show the student’s education was negatively impacted School was not deliberately indifferent ▫School took affirmative and proactive steps to address the inappropriate conduct Doe v. Big Walnut School District (2011)

49. Harassment Under Sec.504 Court refused to dismiss lawsuit for damages based on alleged harassment ▫Other students allegedly used insults and sexually profane comments toward the student Alleged facts are sufficient to support a claim of deliberate indifference to the harassment ▫Allegations that the teacher used profanity in class ▫School’s response had no effect on the continued harassment of the student Preston v. Hilton Central School District (2012)

50. Harassment Under Sec.504 Motion to Dismiss granted due to no deliberate indifference Alleged harassment brief No evidence to show that complaints were ignored A deliberate indifference claim for student-on- student harassment is not available to redress isolated instances of bullying. Wright v. Carroll County Board of Education

51. Harassment Under Sec.504 OCR Student with a disability involved in name-calling and discourteous behavior to and by the student on the bus and in school with another student with a disability No disability harassment Actions attributed her choice of clothes, language, and other personal aspects. Tolteck, AZ (OCR (2008)) Note: HIB includes “other distinguishing characteristics”

52. N.J. HIB School district policy required HIB includes conduct that occurs off of school grounds when a school employee is made aware of such actions

53. HIB Conduct alone is not basis for finding a violation Must have evidence that conduct was motivated by actual or perceived characteristic Must have evidence of impact ▫Orderly operation of the school and ▫Physical/emotional harm to person/property  Reasonable fear of harm ▫Insulting/demeaning student(s) ▫Hostile educational environment

54. HIB and Students with Disabilities Anti-Bullying Statutory procedures must be followed Applicable state and federal laws applied Consequences/remedial actions may be different based on federal law protections

55. HIB Decisions Behavior was a personal vendetta not HIB. L.B.T. v. Bd of Ed of the Freehold School District Parent's request for home instruction for student who suffered from anxiety associated with a fear of bullying was denied. Aberdeen Board of Education v. F.F. Sp Ed teacher was dismissed due to his behavior which disparaged, confronted and intimidated a special education student in the classroom. In the Matter of the Tenure Hearing of Steven E. Roth,

56. Student with a Disability Perpetrator Conduct which shall constitute good cause for suspension/expulsion of a pupil includes harassment, intimidation, or bullying Nothing contained in the Anti-Bullying Bill of Rights Act shall alter or reduce the rights of a student with a disability with regard to disciplinary actions or to general or special educational services and supports. ▫IDEA/Sec.504 Disciplinary protections apply

57. Student With Disability as Perpetrator U.S. DOE Guidance The IEP Team should review the student's IEP to determine if additional supports and services are needed to address the inappropriate behavior. The Team may need to determine if changes to the environment/placement are warranted.

58. IDEA Behavior Intervention Plans If the IEP Team determines, based on the evaluation, that behavior impedes the learning of the student or others, the IEP Team shall consider the use of positive behavioral interventions and supports and other strategies to address that behavior.

59. IDEA Disciplinary Provisions A manifestation determination is required if the school is considering removing the child with a disability from their educational placement for more than 10 school days in a given school year when it is deemed a change in placement or placing the student in an Interim Alternative Educational Setting.

60. IDEA Service Provisions Even if the behavior is a manifestation of the student’s disability or not, services must be provided by the 11 th school day of removal Services must be provided to the extent necessary to enable the child to appropriately participate in the general curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP.

61. Cyberbullying The Courts overturned disciplinary measures schools took against students who used their home computers to create spoof web pages of school staff using vulgar language and profanity. The connection between the off campus conduct and the school was “too tenuous” and did not cause a “substantial disruption” in the school. Suspensions violated the student’s 1 st Amendment rights to freedom of speech J.S. v. Blue Mountain Sch. Dist.3 rd Circuit (2011) Layshock v. Hermitage Sch. Dist. 3 rd Circuit (2011).

62. Cyberbullying A student set up a computer page at home targeting another student The school had authority under the “substantial disruption” standard to discipline the student for speech that originated off-campus because, given the reach of the Internet, it was reasonably foreseeable that the speech would reach the school. No 1 st Amendment violation Kowalski v. Berkeley County School 4 th Circuit (2011)).

63. Private Schools Nonpublic schools are “encouraged” to comply with the provisions of the Anti-Bullying Bill of Rights Act Law Against Discrimination applies to all schools, including private schools, except for schools operated by a bona fide religious or sectarian organization

64. IEP Placed Students in Nonpublic Schools A student with disabilities who is publicly placed at a private school is entitled to IDEA protections. With respect to discipline, if the student requires disciplinary action, the public agency responsible for the student’s education must ensure that the disciplinary action administered to the student meets applicable IDEA requirements.

65. Confidentiality Parents/guardians of the students who are parties to the investigation shall be entitled to receive information about the investigation, in accordance with federal and State law and regulation The Family Educational Rights and Privacy Act (FERPA) restricts the nonconsensual disclosure of personally identifiable information from a student's education record, including information on disciplinary actions taken against a student.

66. FERPA “Contemporaneous disclosure to the parents of a victimized child of the results of any investigation and resulting disciplinary actions taken” does not constitute a release of an “education record” under FERPA. Jensen v. Reeves (2001)

67. Retaliation School policy must prohibit reprisal or retaliation against any person who reports an act of HIB Claim for retaliation must show: ▫That the individual engaged in a protected activity, ▫The school’s retaliatory action was sufficient to deter a person of ordinary firmness from exercising his or her rights, ▫And that there was a causal connection between the protected activity and the retaliatory action. D.V. v. Pennsauken School District (2013)

68. Mahalo!!